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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to an
award of Arbitrator Eric J. Schmertz filed by the Agency
pursuant to section 7122(a) of the Federal Service
Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Rules and Regulations. The Union filed an
opposition to the Agency's exceptions.

The Agency suspended the grievant for 10 days without pay
for allegedly: (1) misstating a fact to a supervisor and
co-worker; (2) refusing to answer a supervisor's question; and
(3) using insulting, abusive and obscene language when talking
to a supervisor. The Arbitrator found that the Agency failed
to show by clear and convincing evidence that the suspension
was made for just and sufficient cause. The Arbitrator
sustained the grievance, set aside the suspension, and ordered
that the grievant be given backpay. For the following reasons,
we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant is a Deportation Officer who was reassigned
to perform Bond Officer duties for 1 day. While completing a
worksheet on a bond for an alien being held in the Chula Vista
detention center, the grievant had all of the information
needed to entitle the alien to be released on bond, except the
alien's date of birth. When the grievant was unable to obtain
that information, he requested the secretary who was preparing
the alien's bond worksheet to put her own date of birth on the
form. The secretary refused.

The supervisor overheard the grievant request that the
secretary use her own date of birth on the form. When the
supervisor asked the grievant about that action, a dispute
developed between the supervisor and the grievant. As a
result, the grievant was charged with: (1) dereliction of
duty; (2) misstatement of fact to a supervisor; (3) refusal to
answer a supervisor's question; and (4) use of insulting,
abusive and obscene language to a supervisor. The Agency
investigated the incident and dismissed the charge of
dereliction of duty. The Agency proposed that the grievant be
suspended for 10 days without pay on the remaining charges.

The grievant grieved the suspension. The matter was not
resolved and the grievance was submitted to arbitration. The
parties stipulated the following issue before the Arbitrator:
"Was the 10-day suspension of [the grievant] taken for just and
sufficient cause in accordance with Article 31-H(1) of the
negotiated agreement, and if not, what shall the remedy be?"(1)
Award at 1.

The Arbitrator stated that the Agency "has the burden of
establishing by clear and convincing evidence that there was
just and sufficient cause for disciplining [the grievant]."
Id. at 11. With respect to the charge that the grievant made a
misstatement of fact to the supervisor and a co-worker, the
Arbitrator found that the Agency "failed to establish by clear
and convincing evidence that the conduct charged provides just
and sufficient cause for disciplining [the grievant]." Id. at
13. The Arbitrator found "significant evidence of record that
[the grievant], after having identified the aliens who were entitled to be
released, acted in accordance with common office practice to
accomplish their release expeditiously." Id.

With regard to the alleged misconduct of the grievant set
forth in the third and fourth charges, the Arbitrator found
that the parties presented completely different versions of the
incident. As there was no corroboration of either side's
version, the Arbitrator found that he was "constrained" to find
that the Agency had "not sustained its burden of establishing
by clear and convincing evidence that the words were spoken and
that there was just and sufficient cause for disciplining the
[grievant] on the basis of these last two charges." Id. at
13-14.

The Arbitrator set aside the grievant's 10-day suspension
and ordered that the grievant be made whole as to any loss of
money or rights and privileges that he suffered by virtue of
the suspension.